Harsher Stance by Virginia Parole Board Fails to Demonstrate Actionable Claim

 

The Fourth Circuit Court of Appeals held that eleven prisoners failed to allege facts demonstrating a plausible case to support that the Virginia Parole Board (the Board) has implemented an unwritten policy of denying parole to persons incarcerated for violent offenses.

 

Virginia law provided for discretionary parole prior to 1994. That year, legislation enacted by the General Assembly abolished discretionary parole for all persons incarcerated for felony offenses committed on or after January 1, 1995. That law had no effect on prisoners who committed crimes prior to 1995.

 

The plaintiffs alleged the Board has instituted policies and procedural changes that effect a de facto abolition of parole for parole-eligible persons convicted of violent offenses since parole was abolished for new felony offenders in 1995. The Board has ceased using a risk assessment tool, and it ended face-to-face interviews of prisoners by Board members, supplanting them with interviews, often by video, by parole examiners who then submit electronic reports to a database.

 

Rather than meet in person, the Board circulates the prisoner’s file electronically and votes the same way on parole decisions. The Board’s 2002 rule change decreased the frequency of its meeting with the prisoners’ families and representatives. The plaintiffs also note that, in 1998, the Board repealed its rules governing parole and replaced it with a “Policy Manual” that outlines 14 factors to guide its discretion in granting parole. The plaintiffs alleged the Board “has relied primarily, if not exclusively, on the ‘serious nature and circumstances of the crime’ when making parole determinations with regard to inmates convicted of violent offenses.”

 

To support their claim, the plaintiffs presented statistical evidence. Prior to the abolition of discretionary parole, the grant rate exceeded 40%. Between FY 2002 and FY 2008, the grant rate for violent offense dropped to between 3.7% and 2.1%. The plaintiffs raised Due Process and Ex Post Facto Clause violations.

 

The Fourth Circuit said the lower statistics show the flaw in the plaintiffs’ argument that the Board has established a de fact rule to deny violent offenders parole. The Court said the Board made individual determinations with respect to violent offenders, and that it was paroling between 120 and slightly more than 230 prisoners per year. This showed the Board was releasing some violent offenders but not others.

 

The plaintiffs’ statistics and assertions “presented only speculation that the Board has imposed a bar against parole for violent offenders.” Having found the Due Process claim was properly denied, the Court turned to the Ex Post Facto claim. As to that claim, the prisoners “have alleged facts indicating only that, in exercising its discretion, the Board has opted to adopt a harsher track with respect to violent offenders. This is not actionable.” The district court’s judgment was affirmed. See: Burnett v. Fahey, 687 F.3d 171 (4^th Cir. 2012).

           

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